Citation Nr: 0421232
Decision Date: 08/03/04 Archive Date: 08/09/04
DOCKET NO. 96-16 556 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUES
1. Entitlement to an increased rating for postoperative
fracture of the right ankle, with right calf atrophy and
degenerative changes, currently rated as 40 percent
disabling.
2. Entitlement to an increased rating for traumatic
arthritis of the right knee, currently rated as 10 percent
disabling.
3. Entitlement to an increased rating for traumatic
arthritis of the left knee, currently rated as 10 percent
disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
E. Pomeranz, Associate Counsel
INTRODUCTION
The appellant had active military service from May 31, 1974
to December 18, 1978. Prior to May 31, 1974, the appellant
had three years and 24 days of active service.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal of a November 1993 rating action by the
Department of Veterans Affairs (VA) Regional Office (RO)
located in Atlanta, Georgia.
The Board notes that the issue of entitlement to service
connection for a lumbosacral spine disability was originally
developed for appellate review; however, service connection
for a lumbosacral spine disability was ultimately granted by
the RO in an October 1999 rating action. Therefore, this
issue is no longer before the Board.
This appeal is remanded to the RO via the Appeals Management
Center in Washington, D.C.
REMAND
By a September 1998 decision, the Board remanded this case.
As per the September 1998 remand decision, in August 1999,
the appellant underwent a fee-basis examination which was
conducted by J.R.G., M.D., a private physician. In addition,
in August 1999, an informal hearing was conducted at the RO
before a local hearing officer. In October 1999, the RO
issued a supplemental statement of the case (SSOC) to the
appellant. The SSOC was sent by regular mail to the
appellant's address of record and was not returned to the RO.
The case was subsequently certified to the Board.
In a June 2000 decision, the Board remanded this case again.
In July 2000, the Board notified the RO that the Board's
communication to the appellant was returned undelivered. The
Board requested that the RO remail when the correct address
was ascertained, with any necessary explanation.
In July 2000 and March 2001, the RO sent letters, by regular
mail, to the appellant's address of record. However, the
letters were returned by the United States Postal Service
marked "return to sender, moved, left no address, unable to
forward." In addition, by April 2002 and July 2003 letters
to the appellant from the RO, the RO provided the appellant
notice of the Veterans Claims Assistance Act of 2000 (VCAA).
These letters were sent by regular mail to the appellant's
address of record. However, the letters were returned by the
United States Postal Service marked " not deliverable as
addressed, unable to forward."
An undated memo in the claims file shows that the Disabled
American Veterans (DAV), the appellant's representative, were
contacted and asked whether they had current address
information of the appellant. The DAV responded that they
did not have the appellant's current address information.
In light of the above, the Board notes that it appears that
the appellant's current address is unknown. In this regard,
the Board observes that pertinent provisions of Manual M21-1
specifically address the actions that need to be taken when
the veteran's address is unknown. See M21-1, Part III,
Change 115 (March 2004) par. 1.04f, "Address Unknown." The
record does not document that the RO has completed the
specified development as proscribed by Manual M21-1, Part
III, Change 115 (March 2004) par. 1.04f. This must be done.
Accordingly, the case is remanded to the RO for the following
actions:
1. The RO should consult M21-1, Part
III, Change 115 (March 2004) par. 1.04f,
"Address Unknown" regarding the need
for additional development in cases where
the veteran's address is unknown.
Specifically, the RO is requested to
complete the following actions:
(a) Review the file to ensure the
current address was used.
(b) Perform a SINQ to determine if
either the pending issue or master
record address is different from
that of the returned mail. If so,
fully update BDN as appropriate,
document the change of address for
the claims file, and re-mail the
returned correspondence to the new
address.
(c) Access Share to determine if
Social Security has a better
address. If a new address is found,
update BDN, document the change of
address for the claims file, and re-
mail the returned correspondence to
the new address.
(d) Utilize the Internet web address
locator service for the returned
mail. If a better address is
obtained, update BDN, document the
change, and re-mail the returned
correspondence to the new address.
(Note: The Internet web address
locator will only be made available
to individuals specifically
authorized for access to this
function.)
(e) Check if benefits are being paid
by direct deposit. Is so, fax or
mail a copy of the letter that
provides VA authority to obtain
address information from the bank.
(See M21-1, Part IV, chapter 31,
addendum B for sample language.)
When a reply is received, update BDN
and re-mail the returned
correspondence to the new address.
Any records or information obtained must
be made part of the claims folder. If
records or information are unavailable
from any sources, a written negative
reply should be obtained and associated
with the claims file.
2. Thereafter, if and only if, the
appellant's current address is obtained,
the RO must then review the claims folder
and ensure that all VCAA notice and duty
to assist obligations have been
satisfied. See 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5106, 5107, 5126. The
appellant should be specifically told of
the information or evidence he needs to
submit to substantiate his claims and
what evidence VA will obtain. See
Quartuccio v. Principi, 16 Vet. App. 183
(2002). In this regard, the RO should
specifically request that the appellant
identify the names, addresses, and
approximate dates of treatment for all VA
and non-VA health care providers who have
treated him for his service-connected
right ankle disability, service-connected
right knee disability, and/or service-
connected left knee disability in recent
years. With any necessary authorization
from the appellant, the RO should attempt
to obtain copies of pertinent treatment
records identified by the appellant in
response to this request, which have not
been previously secured. All attempts to
secure this evidence must be documented
in the claims file by the RO. If, after
making reasonable efforts to obtain named
records the RO is unable to secure same,
the RO must notify the appellant and (a)
identify the specific records the RO is
unable to obtain; (b) briefly explain the
efforts that the RO made to obtain those
records; and (c) describe any further
action to be taken by the RO with respect
to the claim. The appellant and his
representative must then be given an
opportunity to respond.
3. After any additional evidence has
been obtained and added to the record,
the RO should review the claims file and
take all other proper measures to ensure
full and complete compliance with the
duty-to-notify and duty-to-assist
provisions of the VCAA. Specifically, if
deemed appropriate, the RO should provide
the appellant a more current VA
examination(s) with respect to any of his
service-connected disabilities.
4. The RO should then review and re-
adjudicate the issues on appeal. If any
such action does not resolve each claim
to the appellant's satisfaction, the RO
should provide the appellant and his
representative a supplemental statement
of the case and an appropriate period of
time should be allowed for response.
Thereafter, the case should be returned
to this Board for appellate review.
(Continued on the next
page)
No action is required by the appellant until he receives
further notice; however, he may present additional evidence
or argument while the case is in remand status at the RO.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
_________________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).